There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.

Brady evidence -- possibly exonerating evidence that prosecutors are required to turn over to the defense -- is far too frequently withheld and/or buried. The punishments for violating this requirement are almost nonexistent. The prosecution hates to see wins become losses. And the government in general -- despite declaring fair trials to be the right of its citizens -- hates to play on a level field.

A federal judge withdrew from a forensic evidence committee because the government told him it wasn't his job to point out the severely-flawed pre-trial forensic evidence discovery procedures deployed by prosecutors. Judge Rakoff called the government out in his resignation letter.

The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter… A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush.

"Trial by ambush" will continue unabated. Prosecutors will shrug off the minimal punishments for withholding evidence. The DOJ will continue to argue that it's allowed to erect as many roadblocks as it wishes in front of defendants.

The D.C. Court of Appeals declared that the federal government will not have to disclose the contents of a guide that determines when its prosecutors should disclose evidence to the accused. The Department of Justice’s “Blue Book” stays in-house, at least for the time being.

In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case.

Brady material was withheld from the defense, something that would have never been discovered without an FBI whistleblower stepping forward. The new guidelines were supposed to make things better. Very little seems to have changed since its introduction. And no one on the defense side of the fight has any idea what prosecutors are required to do under these guidelines.

The National Association of Criminal Defense Lawyers (NACDL) tried asking the government for a copy. This was denied. So, it filed a FOIA request for the "blue book." This, too, was denied, with the government claiming its internal guidelines for ensuring a fair fight were not subject to FOIA requests. From the DC Appeals Court decision [PDF].

The Department refused to disclose the Blue Book, invoking the Freedom of Information Act’s Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation.

This claim is laughable. Of course it's for litigation. But it's not for any specific litigation. It's for use in all DOJ prosecutions, which makes it more aligned with general information, rather than a narrow slice of "attorney work-product." The NACDL pointed this out.

The NACDL argued that the Blue Book fell outside the work-product privilege because it had a non-adversarial function, to wit: the training and education of the DOJ’s vaunted prosecutors. It also argued that its disclosure was fair game because it was not drafted with a specific litigation in mind, but ultimately the Court sided with the federales, who fought tooth and nail to keep the book under wraps.

One part of the judicial system has seen the contents of the "blue book" (other than DOJ prosecutors): the district court. An in camera presentation to both the lower court and the appeals court has allowed both to reach the decision they have. But will it result in the courts holding the DOJ to their own super-secret standards? Of course not.

Judges are presented with evidence obtained through discovery. They have no idea whether all of it is present or if the DOJ followed its own instructions for handing over Brady material to the defense. The judges' viewing of this internal document will not result in greater accountability.

Handing these guidelines over to defense lawyers, however, would give them more avenues to challenge withheld evidence and other perceived violations in disclosure. The government doesn't like this idea and claims that a more level playing field would severely hamper its prosecutions. One is inclined to agree with the DOJ's claim about hampered prosecutions, although not for the reasons it states.

DOJ thus argues that disclosing the Blue Book would “essentially provide a road map to the strategies federal prosecutors employ in criminal cases.” Id. It contends that disclosure would afford anyone who wanted to read the Blue Book (including opposing counsel) “unprecedented insight into the thought processes of federal prosecutors.” Disclosure thus would “undermine the criminal trial process by revealing the internal legal decision-making, strategies, procedures, and opinions critical to the Department’s handling of federal prosecutions.” In addition, it would “severely hamper the adversarial process[,] as DOJ attorneys would no longer feel free to memorialize critical thoughts on litigation strategies for fear that the information might be disclosed to their adversaries to the detriment [of] the government’s current and future litigating positions.”

In other words, the fight might be slightly fairer, and the government won't be having any of that. The DC Circuit is now completely complicit in the government's "trial by ambush" plans.

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]]>an-open-court-with-secret-ruleshttps://www.techdirt.com/comment_rss.php?sid=20160721/11401635034Wed, 28 Mar 2012 14:10:00 PDTStorytelling, Truth And ConsequencesMike Masnickhttps://www.techdirt.com/articles/20120326/03161818238/storytelling-truth-consequences.shtml
https://www.techdirt.com/articles/20120326/03161818238/storytelling-truth-consequences.shtmllike telling stories. Quite a bit. At times, my friends will make fun of me for this, because if there's an opportunity when hanging out to tell a story, I often can't resist. An old friend has referred to it as "uncle Mike's story time." My wife likes to joke about the stories I use often -- that these are "date stories" -- because I probably told her a bunch of them back when we were dating, and she assumes that I told them to others prior to her as well (that might be true). She numbers the most common ones (e.g., "date story 37") to highlight how frequently I use some of them.

Of course, as someone who likes to tell stories, I also love listening to stories -- both for the stories themselves, but also for the craft of storytelling. In the last few years, in particular, I've been listening to lots of podcasts that really focus on storytelling -- The Moth, This American Life, Snap Judgment, Radiolab. They're all fantastic. Of course, if you're just doing pure storytelling for the sake of amusing or entertaining people you're talking to... a certain amount of embellishment can happen. Hell, it can be common and almost expected. Not all my stories do that, but there are a few that would be just that much better if you change a little thing here or there. I once thought it might be fun to put a bunch of my usual stories (the "date stories" I guess) into a book, in which each story would include one exaggeration or outright falsehood -- and the final "chapter" would be to explore what was not quite true in each story, and why I used it (and if it was really necessary). I still think this would be fun to do if I ever actually had the time (I don't).

I've been thinking about this a bit following all of the controversy over This American Life's big retraction of the Mike Daisey episode, in which he used that storyteller's license to exaggerate key parts of the story about what he saw in China when he went to check out the Foxconn factories where Apple products are made. On Sunday, Daisey finally gave the apology he should have given a week ago, in which he admitted that he fabricated and exaggerated in the interest of the story, and that in doing so he didn't live up to his own standards.

But what's interested me even more is that I've seen a few different people call attention to the fact that others have called out This American Life in the past for supposed "true stories" that turned out to be anything but. Four years ago, for example, Jack Shaffer at Slate called out Malcolm Gladwell and TAL for a story that Gladwell did on TAL about his "experience" as a young reporter at The Washington Post (now the owner of Slate). That story was actually done for The Moth -- a regular storytelling event/group/thing, where the key thing is the story, not so much the truth. Almost exactly a year before that, there was a similar article in The New Republic, by Alex Heard, calling out TAL and contributor David Sedaris in a ridiculously long article highlighting a bunch of fact checks that suggest Sedaris' famed stories aren't always in the same time zone as the truth. There have also been other "memoir"-type stories on TAL that I would be willing to bet were similarly exaggerated.

Some have questioned why This American Life did a full hour episode on the Mike Daisey situation, but brushed off the criticism of Gladwell and Sedaris. And I think what it comes down to is exactly the reason it took Daisey so long to come to terms with why people were so upset about his story. Daisey comes from a tradition that is much closer to where Gladwell and Sedaris' stories came from: to entertain people, not to make a larger point. Daisey has been an active public storyteller for a decade or so (he's also active in The Moth). The problem was that with The Agony and the Ecstasy of Steve Jobs, he went past storyteller into advocate.

He wasn't just trying to entertain. He was trying to make people "aware" and to make a difference. When you shift from one mode to the other, the rules change. And Daisey missed that.

The thing is, it's really not hard to separate the two. I don't tell exaggerated stories on Techdirt, in part because this isn't a "storytelling" forum, but also because this site depends on everything on it being as credible as possible. It's quite easy for me to understand the context and when the discussion is real and important, and when I'm just talking with some friends about a funny story. Similarly, I have no reason to doubt Gladwell's detailed research works (even if there are reasonable complaints about his occasional mistakes) include purposeful embellishments "for the story." Context matters and I think most people can separate them when talking about different subjects.

The issue with Diasey was that he took the storytelling tradition, and tried to make it out to be a "news" story in which he was really seeking to get things to happen. And that's where things fell down. If you're going to do that, your story has to check out. I'm not bothered by Gladwell or Sedaris' exaggerations (though I must admit to not finding Sedaris that entertaining -- but Gladwell's WaPo story is hilarious). If Daisey was just telling stories for the sake of storytelling, there wouldn't be an issue. But as soon as he made the story part of a campaign to create change, he had a responsibility to be factual. That he couldn't separate the two was a major mistake, and it's not even clear that his apology fully recognizes that fact.

Storytelling is a useful tool for entertainment. Storytelling can also be helpful in the interest of causing people to change behavior or to become aware of some real situations, but there are different standards that people expect in that kind of storytelling, and failing to live up to those ideals has serious consequences, as Daisey is starting to figure out now.

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]]>not-everything-is-just-a-storyhttps://www.techdirt.com/comment_rss.php?sid=20120326/03161818238Fri, 16 Mar 2012 13:14:45 PDTThis American Life Retracts Entire Episode About Apple Factories After Mike Daisey Admits To Fabricating Parts Of The StoryMike Masnickhttps://www.techdirt.com/articles/20120316/12522618142/this-american-life-retracts-entire-episode-about-apple-factories-after-mike-daisey-admits-to-fabricating-parts-story.shtml
https://www.techdirt.com/articles/20120316/12522618142/this-american-life-retracts-entire-episode-about-apple-factories-after-mike-daisey-admits-to-fabricating-parts-story.shtmlThis American Life episode that focused on the Foxconn factories where Apple products are made, based on a one-man show by Mike Daisey. I wrote about a few key points in the episode -- including some of the more interesting claims from those who were used to "fact check" his story. Apparently, that fact check did not go nearly far enough. Marketplace reporter Rob Schmitz, who is quite familiar with the factories in China, found large parts of the story questionable, and did some followup reporting, finding Daisey's translator and discovering that things Daisey said turned out not to be true. He then confronted Daisey with Ira Glass from TAL, and got Daisey to admit that he fabricated parts of the story, though he still appears to be in denial about how bad this looks:

I stand by my work. My show is a theatrical piece whose goal is to create a human connection between our gorgeous devices and the brutal circumstances from which they emerge. It uses a combination of fact, memoir, and dramatic license to tell its story, and I believe it does so with integrity. Certainly, the comprehensive investigations undertaken by The New York Times and a number of labor rights groups to document conditions in electronics manufacturing would seem to bear this out.

What I do is not journalism. The tools of the theater are not the same as the tools of journalism. For this reason, I regret that I allowed THIS AMERICAN LIFE to air an excerpt from my monologue. THIS AMERICAN LIFE is essentially a journalistic - not a theatrical - enterprise, and as such it operates under a different set of rules and expectations. But this is my only regret. I am proud that my work seems to have sparked a growing storm of attention and concern over the often appalling conditions under which many of the high-tech products we love so much are assembled in China.

The problem, of course, is that it now appears that many of the things he was claiming weren't actually true of the plants he wrote about. There was one story that recounted events that did happen, but at a different plant 1,000 miles away, and which Daisey did not witness at all.

In the meantime, This American Life has retracted the entire show (link is down as of right now), and apparently plans to air a new show today that details what happened and has a detailed apology from Ira Glass (who just recently on the show was telling listeners to go see Daisey's full one man show).

It is true that Daisey is a storyteller, not a reporter, and that's fine in the right context. But once it got to the point that journalistic outfits were reporting on his story -- or even letting him repeat it on the air, he had every responsibility to be clear about the parts that were simply fabricated.

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]]>wowhttps://www.techdirt.com/comment_rss.php?sid=20120316/12522618142Thu, 16 Feb 2012 19:55:39 PSTWould Steve Jobs Have Approved? Artist Offers His Apple Monologue, Performance Rights, For FreeGlyn Moodyhttps://www.techdirt.com/blog/innovation/articles/20120215/09461417769/would-steve-jobs-have-approved-artist-offers-his-apple-monologue-performance-rights-free.shtml
https://www.techdirt.com/blog/innovation/articles/20120215/09461417769/would-steve-jobs-have-approved-artist-offers-his-apple-monologue-performance-rights-free.shtmlAs sales of its products soar, and its share price continues to climb, Apple has come under increasing scrutiny because of the working conditions in the Chinese factories where its iPhone and iPad are manufactured. This has led Apple's CEO, Tim Cook, to announce recently that the Fair Labor Association will be conducting audits of Apple’s final assembly suppliers, including Foxconn factories in China.

That tension between the undeniably desirable products and the not-so-glamorous conditions under which they are made powers a monologue by Mike Daisey, entitled "The Agony and the Ecstasy of Steve Jobs," which we discussed last month, and described by the New York Times as:

a mind-clouding, eye-opening exploration of the moral choices we unknowingly or unthinkingly make when we purchase nifty little gadgets like the iPhone and the iPad and the PowerBook.

This is someone who had an opportunity to transform the world with these devices and then did. He started as someone whose devices were forged out of piracy, and today it’s the most locked-down computer company in the world. As a capitalist I’m sure that it’s very attractive. But if we’re talking about him as an artist, I’d say that he completely lost track of his ideals.

Given that jaundiced view of "the most locked-down computer company in the world", it perhaps shouldn't be too much of a surprise to discover that Daisey the artist is trying to stay true to his own ideals by opening up his work to everyone, not just to download, but to perform:

after nearly 200 performances, the monologuist Mike Daisey was to release a theatrical transcript of his latest one-man show, “The Agony and the Ecstasy of Steve Jobs,” through his Web site, mikedaisey.blogspot.com. It will be free to download and in a rare twist, if an aspiring performer should want to mount a production of the show, Mr. Daisey will not ask for payment.

Rare indeed. Given Jobs' allergic reaction to letting people 'do what they want' without significant limits or tollbooths, would he have approved?

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]]>it's-good-to-sharehttps://www.techdirt.com/comment_rss.php?sid=20120215/09461417769Wed, 25 Jan 2012 14:29:06 PSTOnce Again, If You're Trying To Save The $200 Million Movie, Perhaps You're Asking The Wrong QuestionsMike Masnickhttps://www.techdirt.com/blog/casestudies/articles/20120124/03573817522/once-again-if-youre-trying-to-save-200-million-movie-perhaps-youre-asking-wrong-questions.shtml
https://www.techdirt.com/blog/casestudies/articles/20120124/03573817522/once-again-if-youre-trying-to-save-200-million-movie-perhaps-youre-asking-wrong-questions.shtmlkeep making $200 million movies. As we said at the time, that's asking the wrong question. It's makes no sense at all to start from a cost, and then derive back how to make that profitable. I could just as easily ask how can we possibly make $1 trillion movies in the future? The only thing that should concern Hollywood is how it can make profitable movies in the future. That could mean figuring out ways to make a profit on a movie that costs $200 million (and, certainly big blockbuster movies like Avatar sure seem to still be able to make plenty of money, despite being widely downloaded via unauthorized means). However, it might also mean making really good movies for a lot less money. Of course, we've suggested that in the past, and got mocked by Hollywood folks who seem to insist that any good movie has to cost a lot of money. That seems pretty presumptuous.

I'm a bit behind on this (the SOPA/PIPA stuff took up a lot of time), but filmmaker/actor/director/writer Ed Burns, who came to fame a couple decades ago with the massively successful indie film The Brothers McMullen, likely had every opportunity to follow the path of plenty of successful indie moviemakers: go mainstream. He could have hooked up with a big studio and been filming the latest of those $200 million bubble-gum flicks. And while Burns has appeared in a few big studio films (Saving Private Ryan), over the last few years, he's really focused on staying close to his indie roots. In fact, he's stayed so close to them, that you could argue his latest efforts are even more indie than his first film.

He filmed his latest movie, Newlywedsfor a grand total of $9,000 ($2K for insurance, $2k for actors, $5k for food, transportation, and other costs) and was done in just 12 days -- but spread out over 5 months. He used a three-man crew, natural lighting, found locations that didn't require paying, and filmed with a Canon 5D camera.

Of course, he's admitted that the editing and post-production work really brought the overall budget up to about $120,000 -- but that's still an incredibly inexpensive movie. He's also focused on using Twitter to market the film. In that interview, he notes that if you connect with your fans, they'll "work on your behalf" to help you do stuff. He's distributing it using VOD, and it seems very likely that it will make a nice profit (if it hasn't already), just given the low budget, and all the buzz the film has been getting.

Of course, no one is saying that all movies should be made for $9,000 (though, I'm sure some of our regular critics will pretend that's what I'm saying). But there is an argument that lots of really great movies that would never have been made before, now have the ability to get made, distributed, watched (and be profitable!) in a way that simply wasn't possible just a few years ago. Frankly, I'd rather focus on ways to help more filmmakers be able to make movies like this, than worry about how some exec at NBC Universal defends his decision to waste $200 million on the next "reboot" of some franchise no one cares about.